Bush administration wants al-Marri decision reviewed

Andy Kravetz of the Journal Star

Friday

Jun 29, 2007 at 12:01 AMJun 29, 2007 at 11:07 AM

A Richmond law professor believes a full panel of appellate judges will rehear the case of accused enemy combatant Ali al-Marri, which spells bad news for the former West Peoria man, held in a Naval brig for the last four years. It's rare for such a rehearing to happen, and when it does, the case is likely to be overturned.

A Virginia law professor believes it’s likely the Bush administration will get another chance to argue before a panel of appellate court judges that a former West Peoria man should continue to be held in military custody without charges.

Andy Kravetz can be reached at (309) 686-3283 or akravetz@pjstar.com.

On Wednesday, the government formally asked the 4th U.S. Circuit Court of Appeals in Richmond, Va., to reconsider a June 11 ruling by a trio of judges that ordered the government to either charge Ali Saleh Kahlah al-Marri with a crime or release him from a Naval brig where he has been held for four years.

It wasn’t unexpected — Justice Department officials said they would ask for such a hearing — but it is rare, said Carl Tobias, a law professor at the Richmond University School of Law. "It happens only in a tiny percentage of cases," he said Thursday.

There are two criteria for rehearing a case: if a decision isn’t consistent with others made in that circuit or if the issue at hand is of great public importance.

"I don’t think that anyone could deny the second one," Tobias said.

Al-Marri’s attorney, Jonathan Hafetz of the Brennan Center in New York, said he believed the earlier decision was correct.

"The court’s ruling was unquestionably correct and there is absolutely no basis for the government to attempt to have the full court to revisit it," he said.

The Bush administration disagrees, saying "the panel’s contrary decision radically circumscribes the president’s authority to wage the ongoing military conflict against al-Qaida and impairs his ability to protect the nation from further al-Qaida attacks at home."

It’s up to the 4th Circuit to first decide whether it will take the case and if they do, whether or not to require the attorneys on both sides to file new written arguments.

"I think it could be in the next several months that they could hear and decide it," Tobias said. Regardless, it’s unlikely that al-Marri will be released from custody anytime soon.

The June 11 ruling said the president must either charge al-Marri, deport him, declare him a material witness or release him.

Peoria attorney Lee Smith, who represented al-Marri when he was charged in Peoria with fraud and lying to the FBI, disagrees "with the government’s underlying premise that it is necessary or Constitutionally permissible to jettison the existing procedures of this nation’s courts, developed over the past two centuries, to redress the threat of terrorism."

Like Tobias, Smith believes that regardless of what decision the 4th Circuit makes, the case will wind up in the Supreme Court.

A Qatari national who came to Peoria to attend graduate school at Bradley, al-Marri was arrested at his West Peoria apartment in mid-December 2001, three months after the World Trade Center attacks. Just as a federal judge here was to hold a critical hearing, the government dropped all charges, declared him an "enemy combatant" and whisked him away to the brig in South Carolina, where he has been held since June 2003.

Authorities allege he was an al-Qaida sleeper agent sent here to disrupt the nation’s banking system.

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